Sunday, July 24, 2005

current revision of the paper

in my tuesday evening criminal justice class i'm required to find a "scholarly article" and comment upon it in a paper due at the end of the term in lieu of a final exam.

the paper i've written cites the article and gives a summary of its major points, and since it's copyrighted i can't reprint the article here. but if you have access to somewhere like westlaw or lexis you can find the article cited as 51 am. u.l. rev. 509 (2001). that is, volume 51 of the american university law review, page 509, published in 2001.

so here's the paper so far.

---ANALYSIS OF ÃƒÂ¢Ã¢â€šÂ¬Ã…â€œGUILTY AND GAY: A RECIPE FOR EXECUTION IN AMERICAN COURTROOMS: SEXUAL ORIENTATION AS A TOOL FOR PROSECUTORIAL MISCONDUCT IN DEATH PENALTY CASESÃƒÂ¢Ã¢â€šÂ¬Ã‚Â

ÃƒÂ¢Ã¢â€šÂ¬Ã…â€œGuilty and Gay: A Recipe for Execution in American Courtrooms: Sexual Orientation as a Tool for Prosecutorial Misconduct in Death Penalty CasesÃƒÂ¢Ã¢â€šÂ¬Ã‚Â (51 Am. U.L. Rev. 309, Michael B. Shortnancy) is a look at the possibility that criminal defendants are subject to courtroom bias on the basis of sexual orientation, and that this bias sometimes results in constitutionally suspect sentences of death for defendants convicted of capital crimes.

The article, written in 2001 and so not taking into account some relatively recent legal developments in laws surrounding homosexuality, argues that there is an under-studied bias against homosexuals in American courtrooms. It cites two studies, in California and Arizona, suggest that more than 50% of homosexual court users experienced ÃƒÂ¢Ã¢â€šÂ¬Ã…â€œnegative comments or action,ÃƒÂ¢Ã¢â€šÂ¬Ã‚Â and that 20% of California court employees and more than 75% of Arizona court employees have heard ÃƒÂ¢Ã¢â€šÂ¬Ã…â€œnegative remarksÃƒÂ¢Ã¢â€šÂ¬Ã‚Â about gays and lesbians.

The article then goes on to cite specific cases where anti-gay bias seem to have motivated juries, at least in part, to choose execution, and suggests that these instances should amount to reversible prosecutorial misconduct. In the case of Wesley Neill, the prosecutorÃƒÂ¢Ã¢â€šÂ¬Ã¢â€žÂ¢s closing argument directly and deliberately highlighted the defendantÃƒÂ¢Ã¢â€šÂ¬Ã¢â€žÂ¢s homosexuality (Shortnancy at 339, ÃƒÂ¢Ã¢â€šÂ¬Ã…â€œÃƒÂ¢Ã¢â€šÂ¬Ã‚Â¦ IÃƒÂ¢Ã¢â€šÂ¬Ã¢â€žÂ¢d like to go through some things that to me depict the true person, what kind of person he is. He is a homosexual. ÃƒÂ¢Ã¢â€šÂ¬Ã‚Â¦ YouÃƒÂ¢Ã¢â€šÂ¬Ã¢â€žÂ¢re deciding life or death on a person thatÃƒÂ¢Ã¢â€šÂ¬Ã¢â€žÂ¢s a vowed [sic] homosexual ÃƒÂ¢Ã¢â€šÂ¬Ã‚Â¦ . But these are areas you consider whenever you determine the type of person youÃƒÂ¢Ã¢â€šÂ¬Ã¢â€žÂ¢re setting [sic] in judgement on ÃƒÂ¢Ã¢â€šÂ¬Ã‚Â¦ . The individualÃƒÂ¢Ã¢â€šÂ¬Ã¢â€žÂ¢s a homosexual.ÃƒÂ¢Ã¢â€šÂ¬Ã‚Â).

To date, at least as far as my research has led me, the Supreme Court has not ruled directly on whether these kinds of hostile environments in courthouses might amount to a violation of the ConstitutionÃƒÂ¢Ã¢â€šÂ¬Ã¢â€žÂ¢s Due Process or Equal Protection Clauses. Even so, several Circuit Courts of Appeal have ruled on the admissibility and appropriateness of comments about a defendantÃƒÂ¢Ã¢â€šÂ¬Ã¢â€žÂ¢s homosexuality, and it seems that the Circuit Courts are applying a fundamental misreading of the case law.

In Neill v. Gibson (278 F.3d 1044), a case cited by Shortnancy, the 10th Circuit held on rehearing that, among other things, ÃƒÂ¢Ã¢â€šÂ¬Ã…â€œ(6) prosecution did not engage in misconduct, in penalty-phase arguments, by commenting on petitioner's homosexuality in challenging proffered mitigating factor that petitioner acted under extreme emotional disturbance in committing offenses; and (7) although prosecution's comments about petitioner's homosexuality were improper, they did not rise to level of due process violation.ÃƒÂ¢Ã¢â€šÂ¬Ã‚Â

The Court in Neill considered whether the prosecutorÃƒÂ¢Ã¢â€šÂ¬Ã¢â€žÂ¢s statements rendered the entire trial unfair, and found that because the state had overwhelming evidence of NeillÃƒÂ¢Ã¢â€šÂ¬Ã¢â€žÂ¢s guilt and that much of that evidence was uncontested at trial, the prosecutorÃƒÂ¢Ã¢â€šÂ¬Ã¢â€žÂ¢s comments didnÃƒÂ¢Ã¢â€šÂ¬Ã¢â€žÂ¢t render the entire trial unfair, even though the prosecutorÃƒÂ¢Ã¢â€šÂ¬Ã¢â€žÂ¢s remarks were, indeed, improper.

This kind of reasoning is bogus on its face. A closing rebuttal is the last thing a jury hears before retiring to deliberate, and is something the jury is most likely to remember as it deliberates. There is no way to know with certainty whether or not the prosecutorÃƒÂ¢Ã¢â€šÂ¬Ã¢â€žÂ¢s remarks would have swayed the jury toward imposing a death sentence when, presented with an identical heterosexual defendant and crime, they might have imposed a life sentence. If prosecutorial misconduct is present, especially in the penalty phase, common standards of decency and justice demand reversal of the sentence and at the very least remanding the case for a new sentencing hearing before a new jury, if not outright reduction of the sentence without a remand.

Since Shortnancy wrote his article in 2001, several cases have been decided in Texas and elsewhere that lend credence to the proposition that homosexuality is, or should be, a protected status in AmericaÃƒÂ¢Ã¢â€šÂ¬Ã¢â€žÂ¢s courtrooms.

In Lawrence et al. v. Texas (539 U.S. 558, 2002) the United States Supreme Court held that TexasÃƒÂ¢Ã¢â€šÂ¬Ã¢â€žÂ¢s anti-homosexuality statute (V.T.C.A. Penal Code Ãƒâ€šÃ‚Â§ 21.06) is unconstitutional, overruling the previous case on point, Bowers v. Hardwick (478 U.S. 186, 1986). Relying on a line of cases including Griswold v. Connecticut (381 U.S. 479, 1965, invalidating a state law prohibiting the use of drugs or devices of contraception), Eisenstadt v. Baird (405 U.S. 438, 1972, invalidating a law prohibiting the distribution of contraceptives to unmarried persons), Roe v. Wade (410 U.S. 113, 1973, the famous abortion decision), and Carey v. Population Services IntÃƒÂ¢Ã¢â€šÂ¬Ã¢â€žÂ¢l (431 U.S. 678, 97 S.Ct. 2101 1977, invalidating a law prohibiting the distribution of contraceptive devices to persons under 16 years of age), the Court found that the Texas statute unconstitutionally restricted consensual private behavior between adults, in violation of the Equal Protection Clause of the Constitution. And affirming a statement in Planned Parenthood of Southeastern Pa. v. Casey ( 505 U.S. 833, 1992), the Court repeated that ÃƒÂ¢Ã¢â€šÂ¬Ã…â€œ[the CourtÃƒÂ¢Ã¢â€šÂ¬Ã¢â€žÂ¢s] obligation is to define the liberty of all, not to mandate our own moral code.ÃƒÂ¢Ã¢â€šÂ¬Ã‚Â The Lawrence Court also cited Romer v. Evans (517 U.S. 620, 1996), in which the Court struck down a Colorado constitution provision that excluded homosexuals, lesbians, and bisexuals from the stateÃƒÂ¢Ã¢â€šÂ¬Ã¢â€žÂ¢s anti-discrimination laws, also under the Equal Protection Clause.

These precedents suggest an evolving legal framework that prohibits discrimination against homosexuals in American courthouses under both Due Process and Equal Protection standards.

In Goodridge v. Department of Public Health (798 N.E.2d 941, 2003, the ÃƒÂ¢Ã¢â€šÂ¬Ã…â€œMassachusetts gay marriageÃƒÂ¢Ã¢â€šÂ¬Ã‚Â case), the Court wrote ÃƒÂ¢Ã¢â€šÂ¬Ã…â€œthat the core concept of common human dignity protected by the Fourteenth Amendment to the United States Constitution precludes government intrusion into the deeply personal realms of consensual adult expressions of intimacy and oneÃƒÂ¢Ã¢â€šÂ¬Ã¢â€žÂ¢s choice of an intimate partnerÃƒÂ¢Ã¢â€šÂ¬Ã‚Â (Goodridge, supra at 948). If that is correct, then by extension, the government, represented by the prosecutor, may not inject homosexuality into a criminal proceeding in such a way as to promote bias against the defendant, any more than a prosecutor may suggest that execution is the only appropriate punishment because the defendant is black.

There are some situations where investigation of a defendantÃƒÂ¢Ã¢â€šÂ¬Ã¢â€žÂ¢s homosexuality is necessary to the conduct of a criminal case. It can shed light on a defendantÃƒÂ¢Ã¢â€šÂ¬Ã¢â€žÂ¢s motive to commit murder if, for example a defendant was blackmailed under threat that his homosexuality would be revealed, and he committed the murder to end the threat. Even so, an appropriately careful judge, prosecutor, and defense attorney can insure that these kinds of issues donÃƒÂ¢Ã¢â€šÂ¬Ã¢â€žÂ¢t improperly taint a jury. For example, careful questioning during voir dire can expose and eliminate jurors predisposed to vote for death on the basis of homosexuality, and appropriate jury instructions that homosexuality is neither an aggravating nor mitigating factor can also help juries understand the factors they should and should not consider. This is especially important because death-eligible juries are already stacked in favor of the prosecution, because it is routine to exclude any juror who would not, as a matter of conscience, impose a death sentence at all. Studies cited by Shortnancy and others indicate that these juries are predisposed to issue death sentences regardless of other issues, and the Supreme Court has upheld the jury selection methods that produce these juries.

ShortnancyÃƒÂ¢Ã¢â€šÂ¬Ã¢â€žÂ¢s conclusion, that there exists a courthouse bias against homosexuality that results in inappropriate convictions and sentences, is in need of further study, but if heÃƒÂ¢Ã¢â€šÂ¬Ã¢â€žÂ¢s correct (and it wouldnÃƒÂ¢Ã¢â€šÂ¬Ã¢â€žÂ¢t surprise me if it did, especially in the ÃƒÂ¢Ã¢â€šÂ¬Ã…â€œBible BeltÃƒÂ¢Ã¢â€šÂ¬Ã‚Â), recent case law suggests that despite the recent anti-homosexual backlash in wake of the Goodridge decision, such bias must be impermissible, and evidences of this bias in judicial, prosecutorial, and defense counsel decisions will amount to reversible error.---